The Basics of the Family and Medical Leave Act

The Family and Medical Leave Act ("FMLA") entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons. FMLA applies only to covered employers and is only available to eligible employees, as defined below. Albeit Weiker, LLP handles all types of FMLA-related issues. 

Employers Covered by FMLA

FMLA only applies to certain covered employers. A "covered employer" is a:

  1. Private employer, with 50 or more employees;
  2. Public agency, including a local, state, or Federal government agency, regardless of the number of employees; or
  3. Public or private elementary or secondary school, regardless of the number of employees.

Employers meeting the requirements above must:

  • Post a notice explaining FMLA rights and responsibilities; 
  • Include information about FMLA in their employee handbooks or provide information to new employees upon hire;
  • Provide a requesting employee with notice concerning the employee's eligibility for FMLA leave and rights and responsibilities under FMLA; and
  • Notify employees whether leave is designated as FMLA leave and the amount of leave that will be deducted from the employee’s FMLA entitlement.

Employees Eligible for FMLA

Only eligible employees are entitled to take FMLA leave. An eligible employee:

  1. Works for a covered employer (see above);
  2. Has worked for the employer for at least 12 months;
  3. Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave; and
  4. Works at a location where the employer has at least 50 employees within 75 miles.

Under #2 above, the 12 months of employment do not have to be consecutive. Any time previously worked for the same employer (including seasonal work) can be used to meet the 12-month requirement. However, if the employee has a break in service that lasted 7 years or more, the time worked prior to the break will not count unless certain exceptions apply. 

FMLA Leave Entitlement (12 weeks) 

Eligible employees are entitled to take up to 12 workweeks of leave in a 12-month period for one or more of the following reasons:

  1. The birth of a child or placement of a child with the employee for adoption or foster care;
  2. To care for a spouse, son, daughter, or parent who has a serious health condition;
  3. For a serious health condition that makes the employee unable to perform the essential functions of the job; or
  4. For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or called to covered active duty status.

Military Caregiver Leave (26 weeks) 

FMLA also provides that an eligible employee may take up to 26 workweeks of leave during any single 12-month period in order to care for a covered servicemember with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin of the servicemember. The "single 12-month period" for military caregiver leave is different from the 12-month period used for other FMLA leave reasons.

Certification 

If FMLA leave is requested due to an employee's own serious health condition or a covered family member’s serious health condition, the employer may require certification from a health care provider. An employer may also require second or third medical opinions (at the employer’s expense) and periodic recertification of a serious health condition. 

Intermittent or Reduced Leave Schedule 

Depending on the reasons for FMLA leave, employees may take the leave on an intermittent or reduced leave schedule. This means an employee may take leave in separate blocks of time or by reducing the time worked each day or week. When intermittent leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer's operations. If FMLA leave is for the birth, adoption, or foster placement of a child, use of intermittent or reduced schedule leave requires the employer’s approval.

Concurrent Leave 

In some cases, employees may choose, or employers may require employees through their policies, to "substitute" (run concurrently) accrued paid leave, such as sick or vacation days, to cover some or all of the FMLA leave period. An employee’s ability to, or employer's requirement to, substitute accrued paid leave is determined by the employer's written leave policies.

FMLA Notice Requirements 

Employees must comply with their employer’s requirements for requesting leave and provide enough information for their employer to reasonably determine whether FMLA applies to the request. As a general rule, employees must request leave 30 days in advance when the need for leave is foreseeable. When 30 days advanced notice is not possible, employees must provide notice as soon as practicable.

When an employee seeks FMLA leave for the first time, the employee does not have to assert that the leave is for an FMLA-qualifying reason or even mention the FMLA. If an employee later requests additional leave for the same condition, the employee must specifically reference either the reason or the need for FMLA leave. 

Restoration to Original Position 

Upon return from FMLA leave, an employee must be restored to the original position or to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot be counted against the employee under a “no-fault” attendance policy.

Maintenance of Health Benefits 

Employers are required to continue group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave. 

Special Considerations for School Instructional Employees 

Special rules apply to primary and secondary schools when intermittent leave or a reduced leave schedule is taken by an instructional employee, such as a teacher. If you are a school or school employee and have questions about these exceptions, call Albeit Weiker at (614) 519-6918. 

Special Considerations for Salaried ("Exempt") Employees 

Salaried executive, administrative, and professional employees of covered employers who meet the Department of Labor's criteria for exemption from minimum wage and overtime under the FLSA regulations do not lose their FLSA-exempt status by using unpaid FMLA leave. This special exception to the “salary basis” requirements for FLSA’s exemption extends only to an eligible employee’s use of FMLA leave.

FMLA Claims / Enforcement 

It is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding related to the FMLA. The Department of Labor ("DOL") is responsible for administering and enforcing FMLA for most employees, although private claims can also be brought in court.

If you need help interpreting FMLA or believe that your FMLA rights have been violated, contact Mark Weiker at (614) 519-6918, who can help you determine whether you can file a complaint with the DOL or a lawsuit in court.